a li'l of this and a li'l of that

July 27, 2015

Late last year leaked documents revealed that the MPAA helped Mississippi Attorney General (AG) Jim Hood to revive SOPA-like censorship efforts in the United States.

In a retaliatory move Google sued the Attorney General, hoping to find out more about the secret plan. The company also demanded copies of internal communications from the MPAA which are now revealing how far the anti-Google camp planned to go.

Emails between the MPAA and two of AG Hood’s top lawyers include a proposal that outlines how the parties could attack Google. In particular, they aim to smear Google through an advanced PR campaign involving high-profile news outlets such as The Today Show and The Wall Street Journal.

With help from Comcast and News Corp, they planned to hire a PR firm to “attack” Google and others who resisted the planned anti-piracy efforts. To hide links to the MPAA and the AG’s office, this firm should be hired through a seemingly unaffiliated nonprofit organization, the emails suggest.

“This PR firm can be funded through a nonprofit dedicated to IP issues. The ‘live buys’ should be available for the media to see, followed by a segment the next day on the Today Show (David green can help with this),” the plan reads (pdf).

The Today Show feature would be followed up by a statement from a large Google investor calling on the company to do more to tackle the piracy problem.

“After the Today Show segment, you want to have a large investor of Google (George can help us determine that) come forward and say that Google needs to change its behavior/demand reform.”

In addition, a planted piece in the Wall Street Journal should suggest that Google’s stock would lose value if the company doesn’t give in to the demands.

“Next, you want NewsCorp to develop and place an editorial in the WSJ emphasizing that Google’s stock will lose value in the face of a sustained attack by AGs and noting some of the possible causes of action we have developed,” the plan notes.

Previously, the MPAA accused Google of waging an “ongoing public relations war,” but the above shows that the Hollywood group is no different.

On top of the PR-campaign the plan also reveals details on how the parties would taint Google before the National Association of Attorneys General.

Through a series of live taped segments they would show how easy it is for minors to pirate R-rated movies, buy heroin and order an assault weapon with the help of Google’s search engine.

Finally, the plan includes a “final step” where Attorney General Hood would issue a civil investigatory demand to Google.

In its court filing (pdf) Google uses the information above to argue that the AG’s civil investigatory demand was not the basis of a legitimate investigation. Instead, it was another tool pressuring the company to implement more stringent anti-piracy measures.

Given this new information, Google hopes that the court will compel Fox, NBC and Viacom to hand over relevant internal documents, as they were “plainly privy” to the secretive campaign.

It’s now up to the judge to decide how to proceed, but based on the emails above, the MPAA and the AG’s office have some explaining to do.

March 29, 2012

Last week, RIAA CEO Cary Sherman confirmed that the country's largest ISPs will voluntarily roll out by July 1 a "graduated response" program aimed at discouraging unauthorized downloading. A Memorandum of Understanding published last summer outlines the program, which was developed without user feedback . Under the new system, a rightsholder accusing an ISP subscriber of infringment will trigger a series of ever-increasing consequences . The responses are graduated in the sense that they escalate after each accusation, beginning with steps aimed at educating users about copyright and culminating in the Orwellian-sounding "mitigation measures" — bandwidth throttling or account suspension.

One key problem is the arrangement shifts the burden of proof: rather than accusers proving infringement before the graduated response process starts against a subscriber, the subscriber must disprove the accusation in order to call a halt to it. Worse, accused subscribers have to defend themselves on an uneven playing field. For example, they have only ten days to prepare a defense, and with only six pre-set options available. Of course, there's no assurance that those who review the cases are neutral, and the plan sorely lacks consequences for an accuser who makes mistaken or fraudulent claims.

There are still more problems. The plan calls for "education" after the first accusations, but based on the information now available on the website launched last year by the Center for Copyright Information (the entity charged with administering the system), it's likely to be both deceptive and scare-mongering. And the whole system lacks in transparency: while it includes some minimal reporting requirements, those reports need not be made public.

The final rub: subscribers will doubtless be paying for their own "re-education," as ISPs pass on their portions of the administration costs in the form of higher fees.

What can users do at this point? In some cases, they can vote with their feet. This agreement is voluntary for now, and while the participating ISPs include many major companies — AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable — there are other options. Users lucky enough to have a choice of providers for their Internet service should consider switching to a service that opted not to "cooperate." For example, companies like Sonic and Cox Communications have a history of fighting for their users where they can, and are notably absent from this arrangement.

Otherwise, users have little choice for now but to watch their ISP roll out this new system against their interests, and maybe familiarize themselves with the six pre-approved responses available to them after an accusation. EFF will continue to follow developments in this agreement closely, and will be offering users a way to speak out against it soon. Stay tuned to updates about these actions on our EFFector mailing list , or by following EFF on Identi.ca or Twitter .

February 28, 2012

February 21, 2012

On the eve of the Republican primary in Florida, the Romney campaign started running a new television ad called “History Lesson.” Romney was coming off Newt Gingrich’s double-digit win in South Carolina and the momentum in the campaign for the 2012 Republican seemed to be shifting, perhaps decisively, in Gingrich’s favor. With only ten days between primaries, the Romney campaign needed a new, hard-hitting approach and it needed to act quickly.

The new ad was a key part of that. The thirty-second ad was quite simple and straightforward. The last couple of seconds were the obligatory “I’m Mitt Romney and I approve this message” while the first twenty- seven seconds were just a video clip from the NBC Nightly News broadcast of January 21, 1997. The familiar voice but much-younger face of anchor Tom Brokaw came up and Brokaw opened that evening’s newcast with the lead story of the day: then Speaker of the House Newt Gingrich had been found guilty of ethics violations by the House of Representatives in a vote of 395-28 and had been ordered to pay a $300,000 fine in connection with the violations. (You can read the front page story of the January 22, 1997 Washington Post here.)

There can be little doubt about why the Romney campaign chose to run the clip from the Nightly News. The campaign wanted to hit Gingrich with what they say as a strong charge against him and they wanted to avoid accusations that they had cherry-picked the facts for the ad. What better way to do that than to use the expression of a highly-regarded, wholly independent source, such as Tom Brokaw and the Nightly News.

Brokaw and NBC saw the matter differently. As was widely reported, on January 28, 2012, three days before the Florida primary, NBC sent a letter to the Rommey campaign asking the campaign to cease using NBC news material in Romney campaign ads. NBC had made similar requests of other campaigns that had used material without first seeking permission from NBC. Brokaw himself was quoted as saying that “I am extremely uncomfortable with the extended use of my personal image in this political ad” as Brokaw did “not want my role as a journalist compromised for political gain by any campaign.”

The letter istelf (a copy is available at Politico.com) is short and to the point. The material used in the Romney ad was under copyright and the Romney campaign was using the material without permission. The letter further suggested that the way in which the material was being used suggested that NBC had consented to its use. And beyond copyright, NBC complained that “this use of the voice of Mr. Brokaw and the NBC News name exploits him and the jouralistic credibility of the NBC News.”

We start with legal issues and then turned to bigger picture considerations. On copyright, the core structure of copyright’s fair use is use without permission. To complain of use without permission is simply to complain about how copyright is organized, which is fine, but when we think of what scope fair use should have the use by the Romney campaign seems as fair as it can get. It is apparent to all, I think, that the reason the campaign used the materials was precisely that NBC and other leading news organizations are seen as having journalistic credibility. The Romney campaign wanted to offer up an independent framing of the 1997 ethics charge, not one that was somehow seen as concocted by the Romney campaign. A 15-year old news clip was the perfect was to do this. And, of course, the age of the clip meant that no one could seriously think that NBC or Brokaw were, in 1997, endorsing the 2012 Romney campaign.

Beyond this, the trump card that NBC and Brokaw sought to play would seem to mean that professional video representations of historical facts would simply be taken off of the table for political campaigns. It is hard to see how NBC and similar organizations could ever consent to use, given that consent itself would seem to be inconsistent with the neutral role of news organizations. Far better to have the fair use regime, where there is no consent and no sense of endorsement by a news organiation of one campaign over another.

Then we get to the bigger picture on this. I have this sense, with more frequency than I would like, that major media organizations think of the First Amendment as something that runs in their favor but never against them. A First Amendment for me but not for thee. It would have been nice if NBC and Mr. Brokaw had seen this as an opportunity to invest in the First Amendment ecosystem. That would have meant acknowledging the legitimacy of the use of the video clip by the Romney campaign and the need for such use in a vibrant democracy. Instead, NBC saw its interest in the narrowest terms possible and threw away a great opportunity to demonstrate how the First Amendment should work in a robust democracy.